HomeMy WebLinkAbout19- Professional Services Agreement - Stifel, Nicolaus & Company - Bozeman Public Safety Center Bond Underwriting PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 1 day of July, 2019, by and between
the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and
existing under its Charter and the laws of the State of Montana, 121 North Rouse Street,
Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter
referred to as "City," and, Stifel,Nicolaus & Company, hereinafter referred to as "Contractor."
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Attachment "A" and by this
reference made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution
and will terminate after bond issuance.
3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City,
and will become an additional charge over and above the amount listed in the Scope of Services.
The City must agree in writing upon any additional charges.
5. Contractor's Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this
Agreement, the Scope of Services, and with all local conditions and federal, state and
local laws, ordinances, rules, and regulations that in any manner may affect cost, progress
or performance of the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and
ability to perform the services required by this Agreement; that it will perform said
services in a professional, competent and timely manner and with diligence and skill; that
it has the power to enter into and perform this Agreement and grant the rights granted in
it; and that its performance of this Agreement shall not infringe upon or violate the rights
of any third party, whether rights of copyright, trademark, privacy, publicity, libel,
slander or any other rights of any nature whatsoever, or violate any federal, state and
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municipal laws. The City will not determine or exercise control as to general procedures
or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be
considered an employee of the City for any purpose. Contractor is not subject to the terms and
provisions of the City's personnel policies handbook and may not be considered a City employee
for workers' compensation or any other purpose. Contractor is not authorized to represent the
City or otherwise bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers' Compensation
Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39,
Chapter 71, MCA. Contractor shall maintain workers' compensation coverage for all members
and employees of Contractor's business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder
for workers' compensation coverage by an insurer licensed and authorized to provide workers'
compensation insurance in the State of Montana; or (2) proof of exemption from workers'
compensation granted by law for independent contractors.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated
with such problems or disputes and for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: The Contractor will defend,
indemnify, and hold harmless the Issuer, each of its members, directors, officers and employees,
and each person who controls the Issuer within the meaning of Section 15 of the Securities Act
of 1933 or Section 20 of the Securities Exchange Act of 1934, against any and all losses, claims,
damages, liabilities, and expenses to which the Issuer may become subject, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof), arise out of or are
based upon: (i) any statement or information in the Preliminary Official Statement or in the
Official Statement under the caption "Underwriting" that is or is alleged to be untrue or incorrect
in any material respect, or any omission or alleged omission of any statement or information in
the Preliminary Official Statement or the Official Statement under the caption "Underwriting"
which is necessary in order to make the statements therein not misleading; or (ii) Contractor's or
any of Contractor's employees' gross negligence or willful misconduct in the performance of the
services that are the subject of this contract; provided, however, that such indemnification shall
not cover any losses, claims, damages, liabilities, or expenses that are attributable to the gross
negligence or willful misconduct of the Issuer or its employees.
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Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this
Section must not be construed to negate, abridge, or reduce any common-law or statutory rights
of the indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor's indemnity under this Section shall be without regard to and without any
right to contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the
Contractor to assert its right to defense or indemnification under this Agreement or under the
Contractor's applicable insurance policies required below the indemnitee shall be entitled to
recover reasonable costs and attorney fees incurred in asserting its right to indemnification or
defense but only if a court of competent jurisdiction determines the Contractor was obligated to
defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s)
thereof.
In the event of an action filed against City resulting from the City's performance under
this Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of this
Agreement except "responsibility for his own fraud, for willful injury to the person or property
of another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor's expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain
any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this
Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City
without limit and without regard to the cause therefore and which is acceptable to the City and
Contractor shall furnish to the City an accompanying certificate of insurance and accompanying
endorsements in amounts not less than as follows:
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• Workers' Compensation—statutory;
• Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate; and
• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall include no less
than a sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance
coverage and endorsements prior to the Contractor commencing work. Contractor shall notify
City within two (2) business days of Contractor's receipt of notice that any required insurance
coverage will be terminated or Contractor's decision to terminate any required insurance
coverage for any reason.
The City must approve all insurance coveralZe and endorsements prior to the
Contractor commencing work.
S. Termination for Contractor's Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any
terms or conditions of this Agreement, the City may, by written notice, terminate this
Agreement and the Contractor's right to proceed with all or any part of the work
("Termination Notice Due to Contractor's Fault"). The City may then take over the work
and complete it, either with its own resources or by re-letting the contract to any other
third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
C. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost
business opportunity, lost productivity, field office overhead, general conditions costs, or
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lost profits damages of any nature arising, or claimed to have arisen, as a result of the
termination.
9. Termination for City's Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the
City, make it advisable to the City to cease performance under this Agreement City may
terminate this Agreement by written notice to Contractor ("Notice of Termination for
City's Convenience"). The termination shall be effective in the manner specified in the
Notice of Termination for City's Convenience and shall be without prejudice to any
claims that the City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City's Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance
under this Agreement and make every reasonable effort to refrain from continuing work,
incurring additional expenses or costs under this Agreement and shall immediately cancel
all existing orders or contracts upon terms satisfactory to the City. Contractor shall do
only such work as may be necessary to preserve, protect, and maintain work already
completed or immediately in progress.
C. In the event of a termination pursuant to this Section 9, Contractor is
entitled to payment only for those services Contractor actually rendered on or before the
receipt of the Notice of Termination for City's Convenience.
d. The compensation described in Section 9(c) is the sole compensation due
to Contractor for its performance of this Agreement. Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost
business opportunity, lost productivity, field office overhead, general conditions costs, or
lost profits damages of any nature arising, or claimed to have arisen, as a result of the
termination.
10. Limitation on Contractor's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby
expressly waives any right to claim or recover consequential, special, punitive, lost
business opportunity, lost productivity, field office overhead, general conditions costs, or
lost profits damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
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circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to
the claim. In the event Contractor fails to provide such notice, Contractor shall waive all
rights to assert such claim.
11. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be the Finance Director or such other individual as City shall designate
in writing. Whenever approval or authorization from or communication or submission to
City is required by this Agreement, such communication or submission shall be directed
to Kristin Donald as the City's Representative and approvals or authorizations shall be
issued only by such Representative; provided, however, that in exigent circumstances
when City's Representative is not available, Contractor may direct its communication or
submission to other designated City personnel or agents as listed above and may receive
approvals or authorization from such persons.
b. Contractor's Representative: The Contractor's Representative for the
purpose of this Agreement shall be Scott Pasternak or such other individual as Contractor
shall designate in writing. Whenever direction to or communication with Contractor is
required by this Agreement, such direction or communication shall be directed to
Contractor's Representative; provided, however, that in exigent circumstances when
Contractor's Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state
and federal laws, regulations, and municipal ordinances including, but not limited to, all
workers' compensation laws, all environmental laws including, but not limited to, the generation
and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety
rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all
applicable City, County, and State building and electrical codes, the Americans with Disabilities
Act, and all non-discrimination, and utilization of minority and small business statutes and
regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of
persons performing this Agreement shall be on the basis of merit and qualifications. The
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Contractor will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts, with the
exception of laws pertaining to affirmative action. The Contractor will not refuse employment to
a person, bar a person from employment, or discriminate against a person in compensation or in
a term, condition, or privilege of employment because of race, color, religion, creed, political
ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender
identity, physical or mental disability, except when the reasonable demands of the position
require an age, physical or mental disability, marital status or sex distinction. The Contractor
shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2,
United States Code, and all regulations promulgated thereunder. The Contractor shall require
these nondiscrimination terms of its sub-Contractors providing services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol
or illegal drugs, by any employee or agent engaged in services to the City under this Agreement
while on City property or in the performance of any activities under this Agreement. Contractor
acknowledges it is aware of and shall comply with its responsibilities and obligations under the
U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such
compliance and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's
employees and agents in proper and specified work methods and procedures. The Contractor
shall provide continuous inspection and supervision of the work performed. The Contractor is
responsible for instructing his employees and agents in safe work practices.
16. Modification and Assil4nability: This Agreement may not be enlarged, modified
or altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor's rights, including the right to compensation or duties arising
hereunder, without the prior written consent of City. Any subcontractor or assignee will be
bound by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop
and/or provide documentation as requested by the City demonstrating Contractor's compliance
with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other
persons authorized by the City to inspect and copy its books and records for the purpose of
verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement
was used in compliance with this Agreement and all applicable provisions of federal, state, and
local law. The Contractor shall not issue any statements, releases or information for public
dissemination without prior approval of the City.
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18. Non-Waiver: A waiver by either party any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party's right to enforce such
term or conditions or to pursue any available legal or equitable rights in the event of any
subsequent default or breach.
19. Attorney's Fees and Costs: That in the event it becomes necessary for either
Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this
Agreement or to give any notice required herein, then the prevailing Party or the Party giving
notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of
in-house counsel to include City Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon
mutual agreement of the parties, the parties may invite an independent, disinterested
mediator to assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from
the date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
22. Survival: Contractor's indemnification shall survive the termination or
expiration of this Agreement for the maximum period allowed under applicable law.
23. HeadinLs: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
24. Severability: If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all
respects by the laws of the State of Montana.
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26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the
entire agreement of the parties. Covenants or representations not contained therein or made a
part thereof by reference, are not binding upon the parties. There are no understandings between
the parties other than as set forth in this Agreement. All communications, either verbal or
written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless
specifically made a part of this Agreement by reference.
30. Extensions: this Agreement may, upon mutual agreement, be extended for a
period of one year by written agreement of the Parties. In no case, however, may this Agreement
run longer than six months.
[END OF AGREEMENT EXCEPT SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN,MONTANA Stifel, Nicolaus & Company
By
Andrea Surratt, City Manager Print Na : Bryan Stelmack
i e• Director
APPROVED AS TO FORM
By
G+eg-Sraffl ti, Bozeman City Attorney
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UNDERWRITER ENGAGEMENT AGREEMENT
THIS AGREEMENT is made and entered into this 10' day of , 2019, by and among City of Bozeman,
Montana (the Issuer ) and Stifel, Nicolaus & Company, Incorporate , (the Underwriter or Stifel ), with
reference to the following facts:
RECITALS
WHEREAS, the Issuer plans to issue General Obligation Bonds, Series 2019 (the "Bonds") to finance the
construction of the Bozeman Public Safety Center(the "Project"); and
WHEREAS, the Issuer desires and is authorized by law to retain the services of the Underwriter in connection with
the issuance of the Bonds; and
WHEREAS,the Underwriter agrees to be retained by the Issuer and to provide to the Issuer the services described
herein; and
WHEREAS,Stifel agrees to act as underwriter,subject to the conditions set forth herein;
NOW therefore,for and in consideration of the mutual promises, covenants, and conditions herein contained, the
parties hereto agree as follows:
Scope of Services
The Issuer has engaged the Underwriter to perform various services related to the issuance of the Bonds, which
are to be performed within the framework of all relevant rules and regulations. All services are provided on an
arm's length, commercial basis and may or may not be provided in conjunction with services provided by
advisors to the Issuer, such as, but not limited to, a financial advisor or a municipal advisor.
With this understanding, the Underwriter may provide the following services and perform the following
functions with respect to the Bonds:
A. Structuring the Financing
1. The Underwriter will work with the Issuer, its bond counsel, disclosure counsel, and other members of
the Issuer's financing team in evaluating specific terms and conditions affecting the Bonds with the
purposes of meeting the Issuer's financing objectives and assuring appropriate credit quality;
2. The Underwriter will work with the Issuer to create a feasible and efficient structure for the Bonds in
order to enhance the Bonds' marketability;
3. In cooperation with Issuer, the Underwriter will assist in the preparation of and/or review of all
documents necessary to implement the issuance of the Bonds, including, but not limited to, authorizing
resolutions, bond purchase agreement, and preliminary and final official statements distributed to
potential investors, as required;
B. Marketing the Securities
1. The Underwriter will provide information and material as needed to support presentations for rating
agencies and/or bond insurance companies; if requested;
2. The Underwriter will coordinate printing and distribution of the preliminary and final official statements;
3. Together with the Issuer and other appropriate parties, the Underwriter will provide market information
on the timing of the sale of the Bonds in relation to the market conditions and financing needs;
4. The Underwriter will arrange for distribution of the final official statements in accordance with Section
240.15c2-12 of Title 17 of the Code of Federal Regulations; and
5. The Underwriter will serve as sole managing underwriter of the Bonds, which obligation is conditioned
upon the execution of a mutually satisfactory bond purchase agreement and other customary
documentation, and coordinate with all parties so as to consummate the sale and delivery of the Bonds
in a timely manner.
Regulatory Disclosure
Issuer is aware of Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the
Securities and Exchange Commission's adopted rule commonly known as the "Municipal Advisor Rule" (SEC Rule
1513a1-1 to 1513a1-8-"the Rule") and the underwriter exclusion from the definition of"municipal advisor"for a firm
serving as an underwriter for a particular issuance of municipal securities. Some of the services that Stifel will be
called upon to perform, such as providing advice with respect to the sizing,structure,timing and terms of the Bond
issuance, are services that are also commonly provided by financial advisory firms.
However, in providing such services for the Bonds, the parties understand and agree that Stifel is serving as an
underwriter for this transaction and is permitted to give advice and recommendations under the "underwriter
exclusion" provision of the Rule. Issuer agrees that Stifel will not be serving as the Issuer's financial advisor or
acting as an agent or fiduciary for the Issuer and that the Issuer will be consulting with its own legal, financial and
other advisors. This Agreement and relationship shall be either executed, approved or acknowledged by the
governing board of Issuer(the "Governing Board").
Disclosures Required by MSRB Rule G-17 Concerning the Role of the Underwriter
1. Municipal Securities Rulemaking Board ("MSRB") Rule G-17 requires an underwriter to deal fairly at all
times with both municipal issuers and investors.
2. The underwriter's primary role is to purchase securities with a view to distribution in an arm's-length
commercial transaction with the Issuer. The underwriter has financial and other interests that differ from
those of the issuer.
3. The underwriter does not have a fiduciary duty to the issuer under the federal securities laws and is,
therefore, not required by federal law to act in the best interests of the issuer without regard to its own
financial or other interests.
4. The underwriter has a duty to purchase the securities from the issuer at a fair and reasonable price, but
must balance that duty with its duty to sell the securities to investors at prices that are fair and reasonable.
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5. The underwriter will review the official statement for the securities in accordance with, and as part of, its
respective responsibilities to investors under the federal securities laws, as applied to the facts and
circumstances of this transaction. 1
Disclosures Concerning the Underwriter Compensation
The underwriter will be compensated by a fee and/or an underwriting discount outlined below and that will be
set forth in the bond purchase agreement to be negotiated and entered into in connection with the issuance of
the securities. Payment or receipt of the underwriting fee or discount will be contingent on the closing of the
transaction and the amount of the fee or discount may be based, in whole or in part, on a percentage of the
principal amount of the securities. While this form of compensation is customary in the municipal securities
market, it presents a conflict of interest since the underwriter may have an incentive to recommend to the
Issuer a transaction that is unnecessary or to recommend that the size of the transaction be larger than is
necessary.
Conflicts of Interest Disclosures
Stifel has not identified any additional potential or actual material conflicts that require disclosure.
Disclosures Relating to Complex Municipal Securities Financing
Since Stifel has not recommended a "complex municipal securities financing" to the Issuer, additional
disclosures regarding the financing structure for the Issue are not required under MSRB Rule G-17.
However, if Stifel recommends, or if the Issue is ultimately structured in a manner considered a "complex
municipal securities financing" to the Issuer, this letter will be supplemented to provide disclosure of the
material financial characteristics of that financing structure as well as the material financial risks of the financing
that are known to us and are reasonably foreseeable at that time.
Limitation of Duties
The Issuer acknowledges and agrees that Stifel is not making a commitment to extend credit, make a loan or
otherwise fund the Project beyond the obligations contained in a mutually satisfactory bond purchase
agreement. The Issuer acknowledges that the services provided under this Agreement involve professional
judgment by Stifel and that the results cannot be, and are not, guaranteed.
As addressed above, among the services that Stifel will perform under this Agreement is assistance in
preparation of, and/or review of the preliminary and final official statements for the Bonds. We note, however,
that under federal securities law, an issuer of securities has the primary responsibility for disclosure to investors.
Our assistance with respect to, and/or review of the official statement will be solely for purposes of satisfying
our obligations as underwriter under the federal securities laws and such assistance and/or review should not be
construed by the Issuer as a guarantee of the accuracy or completeness of the information in the official
statement.
1 Under federal securities law, an issuer of securities has the primary responsibility for disclosure to investors. The
review of the official statement by the underwriter is solely for purposes of satisfying the underwriter's obligations
under the federal securities laws and such review should not be construed by an issuer as a guarantee of the accuracy
or completeness of the information in the official statement.
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Expenses
The Issuer, from the Bond proceeds, will pay the Underwriter's costs incurred in the performance of this
Agreement, including costs of its legal counsel, if any, communication, preparation of the official statements, and
overhead expenses.
The Issuer, from the Bond proceeds or other lawfully available funds, will pay for legal fees, including disclosure
counsel; rating agency and credit enhancement fees including all related travel (if any); the cost of appraisal, fiscal
consultant, statistical, computer, and graphics services (if any), cost of printing and distribution of the official
statements and expense of publication, advertising, and informational meetings; and the costs of fiscal agent or
bond trustee and registrar.
Compensation
The Underwriter agrees to prepare and coordinate all aspects of the sale of the Bonds. Stifel will be paid only
when the Bonds are sold. The fee for Stifel's preparation and coordination of the sale of the Bonds shall be $3.00
per $1,000.00 of Bonds sold, as outlined in Stifel's response to the Issuer's RFP for Underwriting Services dated
May 10, 2019. The underwriting fee is contingent on a successful sale of the Bonds and is payable from the
proceeds of the Bonds.
Term of Agreement
This Agreement is to continue until the Project is financed or until the Governing Board formally abandons the
Project, unless previously terminated by mutual written consent of the parties hereto.
This Agreement may be terminated at any time by the Issuer, upon five business days' prior notice to such effect to
the Underwriter, or by the Underwriter upon five business days' prior notice to such effect to the Issuer. Any such
termination, however,shall not affect the obligations of the Issuer under the Expenses section hereof.
Severability of Provisions
If any provision of this Agreement is held invalid, the remainder of the Agreement shall not be affected thereby if
such remainder would then continue to conform to the terms and requirements of applicable law.
Governing Law
This Agreement, and the rights and obligations of the parties hereto, shall be construed, interpreted and enforced
pursuant to the laws of the State of Montana, and exclusive venue in any and all actions existing under this
Agreement shall be laid in the action or proceeding which Issuer or Underwriter may be required to prosecute to
enforce its respective rights within this Agreement. The unsuccessful party therein agrees to pay all costs incurred
by the prevailing party therein, including reasonable interest and attorney's fees, to be fixed by court, and said
costs, interest, and attorneys' fees shall be made a part of the judgment in said action. Prior to the
commencement of any litigation concerning this Agreement, the Issuer and the Underwriter agree to first submit
any disagreements to mediation. This mediation requirement is intended to reduce the costs of dispute resolution
for both parties.
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Subcontractors
The Underwriter shall, with the prior written approval of the Issuer, use such subcontractors as are necessary in
the fulfillment of this Agreement.
Miscellaneous
Nothing contained herein shall preclude the Underwriter from carrying on its customary and usual business
activities. The Underwriter specifically reserves the right, but is not obligated, to bid for and maintain secondary
markets on any Issuer outstanding bonds subject to appropriate information barriers. Services provided by the
Underwriter in connection with this Agreement shall not limit the Underwriter from providing services for the
Issuer in conjunction with other services requested by the Issuer except as limited by rule of law or regulation.
In connection with services agreed to herein, it is understood that the Underwriter will render professional services
as an independent contractor. Neither the Underwriter nor any of its agents or employees shall be deemed an
employee of the Issuer for any purpose.
The Underwriter shall not assign or otherwise transfer any interest in this Agreement without the prior written
consent of the Issuer.
The Issuer acknowledges and recognizes Stifel as Underwriter with respect to the municipal securities referenced
for purposes of MSRB Rule G-23 and Securities and Exchange Commission Rule 17 CFR (Registration of Municipal
Advisors) and acknowledges receipt of the G-17 disclosures included herein. It is our understanding that you have
the authority to bind the Issuer by contract with us, and that you are not a party to any conflict of interest
relating to the subject transaction. If our understanding is incorrect, please notify the undersigned immediately.
This Agreement constitutes the entire agreement between the parties relating to the subject matter thereof and
supersedes any prior understandings or representations. The Agreement may be amended or modified only by a
writing signed by both parties. It is solely for the benefit of the Issuer and Stifel, and no other person.
This Agreement is submitted in duplicate originals. The acceptance of this Agreement by the Issuer will occur
upon the return of one original executed by an authorized Issuer representative, and the Issuer hereby
represents that the signatory below is so authorized.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day and year first written above.
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Stifel, Nicolaus &Company, Incorporated
By:
Name: Bryan Stelmack
Title: Director
Date: June 18, 2019
ACCEPTANCE
City of Bozeman, Montana
By:
Name: A yrky-CQ sylyy_�It'}—
Title: (AtbA
Date: c)Id A4
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